Tuesday, 11 November 2014

Prof. Tzimitras: Peaceful activities in EEZ are legal

International Law Professor Harry Tzimitras: Peaceful activities in EEZ are legal

ESRA AYGIN
Interview with International Law Professor Harry Tzimitras (11-12 November 2014)

Tension has mounted in the political arena with Turkey’s seismic research activities in an area declared by Cyprus as its Exclusive Economic Zone. There are various political discussions, but it seems to me that the legal aspect is not being addressed enough. According to international law, who is right, Turkey or Cyprus?

Tzimitras: I would like first of all to reverse the argument in saying that not much attention has been paid to the legal side. In my mind, part of the problem is that a lot of attention has been focused on the legal aspect, especially from the Greek Cypriot side. This is a problem on a number of grounds. One is that, if you focus only on legal, you might very easily omit the wider consequences from security architecture to other kinds of social and political aspects. The second is that, legal issues, fortunately or unfortunately, are to a very large degree, a matter of interpretation. So if you focus on issues of law, I think it is inescapable to discuss about the interpretation of these and the way that the legal principles are being put to practice. International law has been applied throughout its history in ways that adapt to realities of a situation. The law in itself can never necessarily be all-encompassing or automatically applied. That is not the logic of the law anyway. The international community, international organizations, international tribunals, even the international court of justice itself, have all along engaged in a process of application and interpretation of the law. So, in this respect, claiming rights directly from international law in an inflexible way may not always be productive. International law is very important but its proper implementation is also very important. Therefore, the black letter of the law needs to be applied according to the spirit of the law and potentially taking into account the circumstances of each case in order to reach an equitable result. International law of course can very well be the shield vis a vis political arguments but it can also be a very powerful weapon. Usually, legal arguments are not always solely considered by states, but alongside other arguments such as political, strategic, and economic arguments.

To be able to understand the issue, I guess it is necessary to know certain terms. What is an Exclusive Economic Zone and what kinds of rights and limitations does it entail?Tzimitras: Two notions that are often mixed up are the notions of an Exclusive Economic Zone and the Continental Shelf. A Continental Shelf belongs to a coastal state by virtue of that being a state. And then, it is a technical matter of declaration of this and delimitation. So if a state decides or decides not to go ahead with it, that specific area – the Continental Shelf - belongs to the state. The state has sovereign rights in its Continental Shelf even if that state decides not to declare it. The Exclusive Economic Zone, on the other hand, does not come automatically. It has to be claimed. That is the fundamental difference between the two. Within the Exclusive Economic Zone, the state has a very finite, very specific limited number of rights and obligations, which are:1. exploration and exploitation of natural resources- living and non-living2. the generation of energy3. the environmental protection of that area4. fishingThat is it. Nothing more, nothing less. This is very important because it is different from the sometimes widely circulated notion that the state has sovereignty over that area. It does not. It doesn’t have sovereignty; it has certain sovereign rights, in other words exclusive rights pertaining to the aforementioned four things. That is it. So, it is wrong to believe that the EEZ is equated with the state or its territorial waters regarding its sovereignty. For the state, the EEZ is an area of functional rights. Important as they might be, they are not to be equated with sovereignty. So, the infringement upon these rights - problematic as it might be in law - cannot be taken beyond a certain point and portrayed as violation of sovereignty. Infringement of the rights is a very different thing than violation of sovereignty. So we need to be very careful in this respect.

Can a state carry out seismic research in an area claimed as an EEZ by another state?Tzimitras: The waters making up the Exclusive Economic Zone of a state are still international waters, which means that the physical presence of foreign vessels both commercial and military is allowed. The operation of such vessels, if it is not prejudicial to the good order and security of the coastal state is no problem at all. According to Article 58 of the Law of the Seas Convention, they can engage in peaceful activities, perform peaceful research, lay cables. But, they cannot for instance, engage in fishing or explore the natural resources, because as I said before, these are rights of the state that has a claim over the Exclusive Economic Zone.But isn’t the seismic research by Turkey an exploration of natural resources?Tzimitras: The law allows for peaceful activities for research purposes.So there is no problem in conducting seismic research in the EEZ of another state but drilling would fall under ‘exploration and exploitation of natural resources’ and thus, be a problem. Then, Turkey’s current activities do not legally constitute a problem?Tzimitras: I said that peaceful research in principle is not a problem. But drilling would definitely be an issue And I do not think that Turkey will take it further. I know all this discussion about an oilrig and a drill. I don’t think Turkey is going to go down that road. Because, if it wanted to really harass things, it could have already done it. It could have already acted militarily stopping the ship that carries the drill, blocking its way, taking naval action. But Turkey never came closer than 5 nautical miles to the platform and the exploration ships. The Greek Cypriot energy minister himself also said that the operation has never been halted, that it has never been obstructed. Turkey wanted in principle to make its presence felt, to register its disagreement with what is going on. And I think it is going to leave it at that as it has done on a number of occasions in the past. In 2011 with Piri Reis, we had exactly the same things.So from issuing a NAVTEX to the presence of research and military ships in the EEZ of Cyprus, everything Turkey has done in the past weeks were also done in 2011?Tzimitras: Pretty much. But Piri Reis did not have the capacity of performing research to this extent or lay cables. In principle, this is something we have seen again and again and again. Both the reasons for doing it and the reaction to it are the political part. Of course, here there is one more issue we need to look at.Turkey rejects the right of the Republic of Cyprus to declare the area as its EEZ. It says that the Republic of Cyprus does not represent the whole island and in this respect, it does not have the right to engage in international treaties representing the whole island. So, there are the two levels of analysis by Turkey here. One, is the Republic of Cyprus entitled to declare this area its EEZ? Two, even if it is, would we still be able to do certain things there?How does the fact that Turkey is not a signatory to the Law of the Seas Convention affect the area claimed by Cyprus as its Exclusive Economic Zone?Tzimitras: A number of the provisions of the Law of the Seas Convention itself -including the Exclusive Economic Zone stipulations - have acquired the status of what we call ‘customary international law.’ In other words, they are principles that have now acquired the capacity of binding all states of the international community and not only signatories of the convention. Therefore, they are also binding on non-signatory states - in this case Israel and Turkey. Turkey’s recent actions pertain to both the Exclusive Economic Zone and the Continental Shelf. And they also have to do with both Turkey’s own claimed rights over these areas, and rights claimed by Turkey on behalf of the TRNC and/or Turkish Cypriots. So we have four elements here that are interconnected.Does the fact that Cyprus has not made an EEZ delimitation agreement with Turkey make Cyprus’ EEZ disputable?Tzimitras: There is no clear answer. It depends on where you stand and how you interpret the law. There are very powerful arguments from both sides legally speaking. To the southwest, south and southeast of the island, Cyprus has made EEZ delimitation agreements with Egypt, Lebanon and Israel. Turkey is not a coastal state geographically speaking to the south. However, if you start from the premise that the island is one, geographically speaking, then obviously you need to have a total arrangement around the island. Its interesting that the problem comes about not in the areas west of Cyprus - whereby Turkey could be understood as having a stronger claim - but in the south and southeast of the island -- an area that is understood to be absolutely under the delimitation logic between the Republic of Cyprus and Israel and Lebanon. Turkey, in this area, pursues rights on behalf of the TRNC or Turkish Cypriots. And as I said, at the same time, Turkey’s actions around the island don’t only have to do with the Exclusive Economic Zone, but also with the Continental Shelf. As for the Continental Shelf: Turkey is a signatory to the previous 1958 Law of the Seas Convention. This convention binds those states that have not signed the new 1982 Law of the Seas Convention. So, Turkey is very much bound by the first Convention and therefore to its stipulations pertaining to the Continental Shelf – there was no EEZ back then. Turkey, based on its understanding of the 1958 Law of the Seas Convention, and its interpretation of it, is using a position that is revived since 1973 when it was first uttered: ‘Islands are not entitled to full claims of Continental Shelf. They are entitled to some claim that have to do with a number of other things like the extent of coastline population, rights and all that. But not full claim.’ So the fundamental position of Turkey, if I understand it correctly is that, Turkey says: ‘The Continental Shelf should be delimited between Egypt and Turkey. And then Cyprus in the middle, which is called a protuberance of the Continental Shelf, can be give a zone around it to a certain extent. So this is the fundamental position and this is why there is a claim by Turkey to the south and southeast of the island. This is, of course, a position that would be difficult to sustain under current international law, which clearly recognizes the rights of islands to Continental Shelf and especially of island states.

Is this position accepted by any other state?Tzimitras: Continental Shelf is an issue pertaining to each and every state. There is no universal practice. Each state has a differential practice. Each state has the right to claim a Continental Shelf of its own. If there are other states with conflicting claims, then they need to sit down and solve it or take it to the international legal organ. This is a matter of interpretation of the law and its application even by the courts, because the international court of justice and a number of other international tribunals having dealt with such cases in the past have given very different readings to each case. So we have a jurisprudence that is not necessarily a guiding line towards this.Why doesn’t either side go to an international organ or court to get their claims confirmed legally and therefore solve the problem between them?Tzimitras: For two reasons I think. One, because that would mean also an escalation of tension. Secondly, because any court case is a little bit of a lottery. You never know how it will go.

So we wouldn’t be able to say Cyprus would win or Turkey would win?Tzimitras: No. Absolutely not. You never know. And if it is your initiative to do it, then you need to be able to live with the consequences even if the consequences were negative. So I think it was a conscious decision not to pursue this at the moment. Perhaps it’s a good idea because if you go down the legal road then you are possibly limiting other options available, which might lead to a quicker solution.

Recently there is discussion about merging of Exclusive Economic Zones of Greece and Cyprus? Is this possible?Tzimitras: No. This is the revival of an expression of interest to do so by the late President Tassos Papadopoulos. It is not possible for two reasons: First, because Greece does not have a claimed EEZ. Second, even even if Greece had claimed an EEZ, there is no notion of merged EEZs in international law. There is no basis in international law for a common EEZ. It is as simple as that. This is a discussion without much meaning in practice at the moment.

The official position of the Republic of Cyprus is that “the island’s natural resources belong to the state and the benefits will be enjoyed by all its inhabitants after a settlement of the problem.” Turkey on the other hand says, “The resources in Cyprus are for all Cypriots.” Do natural resources belong to states or people?Tzimitras: My reading is that natural resources belong to peoples and nations based on the 1962 resolution of the General Assembly of the United Nations on the Case of the Permanent Sovereignty Over Natural Resources. In that resolution, you will see very clearly that the General Assembly refers only to peoples and nations, never a state. Therefore, peoples and nations are the beneficiaries of natural resources, and the state represents them in espousing this claim. In this respect, the Turkish Cypriots - and I don’t think anybody refutes that on either side - are entitled to the benefits from the natural resources exploitation. Then the question becomes: How they are going to enjoy these rights?The international community’s reaction to Turkey’s actions has been weaker than what was expected by Cyprus. It had a very cautious approach. Do you think this is because of legal or political reasons?Tzimitras: The international community’s stance has been rather lukewarm, at least vis a vis the expectation, as you say correctly. This has to do with two things I think. One, politically speaking, because they take the political conjuncture into serious consideration. The western powers understand Turkey is a powerful country in the region, and is needed in the designs of a coalition against other big problems in the region like ISIL. Secondly, legally speaking, because, from what we talked about, it is not crystal clear, black and white what the situation is. These countries have been careful in the sense that legal issues are not to be proclaimed haphazardly by the politicians, but they need to be taken up by a competent organ like the international court of justice. However, it goes without saying that legal aspects need, of course, also to be taken equally seriously into consideration by the politicians when they make decisions that should not go contrary to international law.So how should this problem be solved?Tzimitras: First of all, when there is will there is a way. That is clear. Secondly, it would be a very good idea for all parties to refrain from extreme and inflammatory actions and reactions. That could also mean that the terrain is paved for a balanced understanding and approach that is conducive to establishing an environment of understanding. I think it is important to be acutely aware of regional and international realities and also of timeframes available, because, unfortunately, something that looks like a doable solution today may not be there tomorrow. So there is need for appraising in a balanced and realistic way the regional and international environment and to think productively on how to engage or disengage from this. And perhaps by realism – realism does not mean abandoning ones legal rights, but appraising realistically what is best for the people and not the states. Steps should be taken in moving ahead in a way that benefits the two communities together. The more we go into this, the more difficult it gets to get disengaged. I think there is a sense of urgency, because the longer the conflict remains the more rooted it becomes and therefore more difficult it becomes to be solved; and international regional realties change all the time. It would be a great pity to miss the opportunity offered by the blessing of natural resources for the benefit and prosperity of all Cypriots. It would be an even greater pity to allow natural resources to become yet another chapter in the existing confrontation, rather than a way out of it.